HRG DATE I 17 ~UDGE GAVIN NEWSOM, Case No.: 34-2021 ...

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

HRG DATE I TIME July 9, 2021 I 9:30A.M.

~UDGE

James P. Arguelles

GAVIN NEWSOM,

Petitioner,

v.

DR. SHIRLEY N. WEBER, in her official capacity as Secretary of State of the State of California,

Respondent.

DEPT. NO. CLERK

17

O'Donnell

Case No.: 34-2021-80003666

Nature of Proceedings:

Petition for Writ of Mandate and Complaint for Equitable Relief; Applications to Intervene- Combined Order

Gavin Newsom's (Governor Newsom) petition for writ of mandate is DENIED.

Governor Newsom's complaint for declaratory and injunctive relief is DISMISSED as duplicative.

Governor Newsom's request for judicial notice of the text of Senate Bill (SB) 151 {2019) and portions of the bill's legislative history is GRANTED.

The application of Orrin E. Heatlie, Mike Netter and The California Patriot Coalition -- Recall Governor Gavin Newsom (collectively "Heatlie Intervenors") to intervene is unopposed and GRANTED.

The application of Caitlyn Jenner and Caitlyn Jenner for Governor 2021, Inc. (collectively "Jenner Intervenors") to intervene is unopposed and GRANTED.

The objection ofthe Jenner Intervenors to the declaration submitted by Governor Newsom's counsel is OVERRULED.

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Overview

The Heatlie Intervenors circulated petitions to recall Govern OJ Newsom from office. The recall

qualified for the ballot. (Pet., ~ 5.) Governor Newsom failed timely to designate his party preference for inclusion on the recall ballot. (See Elec. Code? 11320(c).)1 Pursuant to Section 113i4 arid Code of Civil Procedure Section 1085, Governor Newsom petitions for a writ compelling Respondent Secretary of State Dr. Shirley N. Weber (Secretary Weber) to accept his belated party designation. He also prays for declaratory and injunctive relief. Several? intervenors oppose. Secretary Weber disavows any right to accept the late-filed designation but otherwise for the most part concurs with Governor Newsom.

By way of background, California law historically has not authorized an elected officer subject to a recall election to include his or her political party on the recall ballot. Statements about the party preferences of candidates hoping to replace such an officer, however, have appeared on recall ballots since 2009. (See? 8002.5.) In 2019 the Legislature passed, and Governor Newsom signed into law, SB 151 to authorize elected officers to designate their party information for inclusion on recall ballots. As of January 1, 2020, Section 11320 provides:

The following shall appear on the ballots at every recall election, except in the case of a landowner voting district, with respect to each officer sought to be recalled:

[~~]

(c) If the officer sought to be recalled holds a voter-nominated office, the officer may elect to have the officer's party preference identified on the ballot. The officer shall inform the Secretary of State whether the officer elects' to have a party preference identified on the ballot by the deadline for the officer to file an answer with the Secretary of State pursuant to Section 11023. The Secretary of State shall disseminate this information to all appropriate county elections officials. The statement of party ? preference shall?appear immediately to the right of and on the same line as the officer's name, or immediately below the officer's name if there is not sufficient space to the right ofthe officer's name....

[~~]

(3) If the officer elects not to have the officer's political party preference identified on the ballot, or if the officer fails to inform the Secretary of State whether the officer elects to have a party preference identified on the ballot by the deadline for the officer to file an answer with the Secretary of State, the statement of party preference shall not appear on the ballot. (Emphasis added.)

By its terms, Section 11320(c) requires the officer to identify his or her party preference by the time the answer is filed pursuant to Section 11023. Section 11023 requires the officer to file

1 Undesignated statutory references shall be to the Elections Code.

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the answer "[w]ithin seven days after the filing ofthe notice of intention" to circulate a recall petition. Governor Newsom answered the Heatlie intervenors' notice of intention on February 28, 2020, but failed to designate his party preference. {See Willis Decl., 11111-4.) When Governor Newsom's counsel realized the error in June 2021, Governor Newsom filed a request with Secretary Weber to accept the designation belatedly. {!d., 1111 S-6.) Secretary Weber refused, and this action followed. On Governor Newsom's request, the court set the matter for expedited hearing.

Legal Authority for Writ Relief

"Code of Civil Procedure section 1085 declares that a writ may be issued 'by any court ... to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station ... .'The availability of writ relief to compel a public agency to perform an act prescribed by law has long been recognized. [Citation.]

"What is required to obtain writ relief is a showing by a petitioner of '(1) A clear, present and usually ministerial duty on the part of the respondent ... ; and {2) a clear, present and beneficial right in the petitioner to the performance of that duty ... .' [Citation.] Mandamus is available to compel a public agency1s performance or correct an agency's abuse of discretion whether the action being compelled or corrected can itself be characterized as 'ministerial' or 'legislative[.]"' [Citation.]

(Mission Hosp. Reg'/ Med. Ctr. v. Shewry {2008) 168 Cai.App.4th 460, 478-479, underlining omitted.)

In addition, Section 13314(a) provides:

{1) An elector2 may seek a writ of mandate allegin~ that an error or omission has occurred, or is about to occur, in the placing of a name on, or in the printing of, a ballot, county voter information guide, state voter information guide, or other official matter, or that any neglect of duty has occurred, or is about to occur.

{2) A peremptory writ of mandate shall issue only upon proof of both of the following:

(A) That the error, omission, or neglect is in violation of this code or the Constitution.

(B) That issuance of the writ will not substantially interfere with the conduct of the election.

{3) The action or appeal shall have priority over all other civil matters. [11]

2 For the statutory definition of "elector" see Section 321.

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Discussion

No Ministerial Duty to Accept the Untimely Party Designation

As noted above, Section 11320(c)(3) provides that the elected officer's party preference "shall not appear" ori the recall ballot unless the officer makes the designation at the time the answer is filed. Under the Elections Code, the term "shall" is mandatory whereas "may" is permissive. (? 354.) Section 11320(c) unambiguously obligated Secretary Weber to deny Governor Newsom's request to designate his party preference after he filed his answer. (See Sonoma County Nuclear Free Zone v. Superior Court (1987) 189 Cai.App.3d 167, 178 [statutory provision that "no arguments for or against an initiative may be filed" after a given deadline was "mandatory and allow[ed] for no discretion"].) In other words, Secretary Weber had no ministerial duty to accept the untimely designation, and writ relief appears at the outset to be unavailable. (See Mission Hosp. Reg'/Med. Ctr., supra, pp. 478-479.)

The Doctrine of Substantial Compliance Does Not Apply

Notwithstanding the mandatory deadline in Section 11320(c), Governor Newsom asks the court . to grant his petition by applying the doctrine of substantial compliance. Where applicable, the doctrine permits compliance with the substantial or essential requirements of something, such as a s~atute or contracti that satisfies its purpose or objective even though formal requirements are not met. (See Manderson-Saleh v. Regents of Univ. of Calif. (2021) 60 Cai.App.Sth 674, 701.) Citing a series of cases involving initiative measures or referenda, Governor Newsom argues that enforcing the deadline in Section 11~20(c) would frustrate the purpose of that section rather than give it effect.

California Teachers Association v. Collins (1934) 1 Cal.2d 202 involved a registrar of voters' refusal to accept an initiative petition on grounds that the short title of the measure did not appear in the correcffont and exceeded the maximum word count. The high court granted a writ of mandate and explained:

The requirements of both the Constitution and the statute are intended to and do give information to the electors who are asked to sign the initiative petitions. If that be accomplished in any given case, little more can be asked than that a substantial compliance with the law and the Constitution be had, and that such compliance does no violence to a reasonable construction of the technical requirement ofthe law.

(California Teachers Assn., p. 204.) The court cautioned however:

At this point, let us say that, in applying to this proceeding "the rule of substantial compliance," we do so with the reservation that such interpretation as we have given must not be relied upon to determine every proceeding of similar nature. The procedure set up by the Constitution and the statute is simple, clearly expressed and may be exactly followed with little difficulty. "Substantial compliance" may be carried

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too far, in which case its application may not be relied upon to save carelessly or negligently prepared petitions.

(Jd., p. 205.)

The dispute in Assembly v. Deukmejian (1982) 30 Cal.3d 638 reached the high court after certain state legislators challenged referenda petitions aimed at statutes reapportioning voting districts. The legislators argued that the petitions were invalid because they instructed signers to provide an address where they had registered to vote, not a "residence address" as required by statute. (Assembly, pp. 646-647.) Because signers might have moved after registering to vote, and because such moves could have rendered the signers no longer qualified to vote, use of an address at the time of registration was improper. Although the court determined that the failure to obtain residence addresses was a substantive violation, as opposed to a technical defect, it excused the violation as consistent with prevailing, state-sanctioned practice that had never been successfully challenged. (See id., pp. 651-652.) The court rejected other, technical challenges to the petitions and noted, "'it has long been our judicial policy to apply a liberal construction to [the] power [of initiative and referendum] wherever it is challenged in order that the right be not improperly annulled."' (Jd., p. 652, brackets in original.)

Costa v. Superior Court (2006) 37 Cal.4th 986 was another initiative case. The petitioners there sought an order withholding the measure from the ballot because of differences between the version submitted to the Attorney General and the version subsequently circulated for signatures. In concluding that discrepancies between the two versions did not justify withholding the measure, the court observed:

[l]n determining whether a departure from statutory requirements imposed on initiative or referendum petitions by election-law provisions should be viewed as invalidating a circulated petition, past California decisions have been most concerned with departures that affect the integrity of the process by misleading (or withholding vital information from) those persons whose signatures are solicited.

(Costa, p. 1016, footnote omitted.) The court went on to determine that the different versions of the measure had not frustrated the purposes of relevant constitutional and statutory provisions and likewise had not misled voters. (Jd., p. 1022.) It thus concluded that the measure should not have been withheld. (See id., pp. 1027-1028 ["[W]hen it is apparent that the technical defect in question, as a realistic matter, did not adversely affect the integrity of the electoral process or frustrate the purposes underlying the relevant constitutional or statutory requirements[... ] precluding an otherwise qualified initiative or referendum measure from being placed on the ballot is not an appropriate remedy"].)

In each ofthe cases above, the question was whether nonconformity with constitutional and/or statutory requirements compelled the rejection of an initiative or referendum altogether. That is not the question here. Aside from the fact that this case does not involve an initiative or referendum, there is no question that the voters will decide whether to recall Governor

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Newsom from office. Hence, to the extent the constitutional right of recall is akin to the "precious" rights of initiative and referendum, the exercise of that right vel non is not at issue. (See Ruiz v. Sylva (2002) 102 Cai.App.4th 199, 212 ["Even though the doctrine of substantial compliance is narrowly applied in the election context, our Supreme Court 'has stressed that technical deficiencies in referendum and initiative petitions will not invalidate the petitions if they are in "substantial compliance" with statutory and constitutional requirements' [citation] [and t]he same rules have been applied to recall petitions"].)

The comparatively narrow issue here is whether the doctrine of substantial compliance entitles Governor Newsom belatedly to designate his party preference for inclusion on the ballot. Governor Newsom argues that the aim of SB 151 was to provide voters with party information signaling the elected officer's policy positions and social concerns. He reasons that strict compliance with the deadline in Section 11320(c) would undermine this aim.

In support of his argument, Governor Newsom points to those portions of SB 151's legislative history reflecting a view that including an elected officer's party preference on a recall ballot facilitates informed voter decision making. (See RJN, Exh. B.) Courts typically do not consult legislative history where the statutory text is clear. (See Ruiz, p. 209 ["The statute's plain meaning controls the court's interpretation unless its words are ambiguous [...] If the plain language of a statute is unambiguous, no court need, or should, go beyond that pure expression of legislative intent"].) As noted above, Section 11320(c) unambiguously precludes party information from appearing on a recall ballot where the elected officer fails timely to make the designation. But regardless, it is clear from both the text and the legislative history that SB 151 does not consider information about an elected officer's party affiliation so vital to voters that it must be included on the ballot. To the contrary, unlike a replacement candidate who must appear on the ballot either by party preference or as "Party Preference: None," (see ? 8002.5), an elected officer retains absolute discretion to appear on a recall ballot without any reference to party whatsoever. 3 (See? 11320(c)(3).) Hence, the objective of SB 151 is better described as one to provide elected officers with discretion to inform recall voters about their party preferences, as opposed to imposing a requirement that voters be so informed.

Moreover, none of the cases on which Governor Newsom relies involved the failure to meet a statutory deadline. As Governor Newsom acknowledges, there are several election cases declining to apply the substantial compliance doctrine in this context. (See Barnes v. Wong (1995) 33 Cai.App.4th 390, 396 [citing cases and stating that "[t]he doctrine of substantial compliance does not apply [...c]ases specifically dealing with statutory deadlines for election

3 At oral argument, Secretary Weber's counsel suggested that replacement candidates may amend party preferences after the deadline in Section 11381(a). He cited Section 2152 to support this argument.

That section describes procedures by which voters (as opposed to recall election candidates) may

change the party listed on their affidavits of registration, and may disclose their party if not previously disclosed, until the time at which election polls close. Secretary Weber's counsel ultimately admitted, however, that these last-minute changes do not translate into changes to party information listed on a recall ballot. (See? 11381(a) [Secretary of State must certify recall ballot 55 days before the election].)

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filings that are couched in language requiring documents to be filed 'not less than' or 'not later' than a given number of days before a designated time have insisted on strict compliance"]; Sonoma County Nuclear Free Zone, supra, 189 Cai.App.3d at 177-178 [rejecting argument that, because late-filed ballot argument would not infringe on ballot printing process, and ((because the electorate had a significal'}t interest in access to both sides of a ballot issue/' late filing should have been permitted]; see also lmagistics lnternat., Inc. v. Department of General Svcs. (2007} 150 Cai.App.4th 581, 588-589 [citing Barnes and Sonoma County Nuclear Free Zone to conclude in public contract case that, where failure to protest award of contract by deadline resulted in waiver of protest, doctrine of substantial compliance did not apply, and court had no ((power to issue a writ of mandate to accept a late filing"].)4

Barnes in particular compels the denial of the petition. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction"].) The question in Barnes was whether substantial compliance required the local registrar of voters to accept a ballot argument five hours after the deadline. By ordinance, the registrar had discretion to accept late filings upon finding a good faith mistake. (Barnes, pp. 395-396.} Nonetheless, local policy was to reject all late filings in order to treat everyone involved equally and fairly. (/d., pp. 393-394; see id., p. 394 [uln virtually every election [the registrar] was asked to make exceptions to the deadline and in each instance the person presented what he or she considered a good faith reason why the exception should be allowed"].) Notwithstanding arguments that the late filing in question was the result of a good faith mistake, that the filing reached the registrar mere hours after the deadline, and that there was an overriding public interest in the voters' receipt of a ((balanced and informative statement" about the measure in question, the Court of Appeal held that substantial compliance had no application. (See Barnes, pp. 394, 396.}

The Barnes court noted that ((hard and fast enforcement of filing deadlines avoids uneven and inconsistent administration of preelection procedures and is the most reliable way to ensure that everyone is treated fairly and equally." (/d., p. 396.} Directly on point here, the Court of Appeal characterized the lower court's contrary judgment as uno more than a substitution of the court's view of the most important public policy-- ensuring that the public receive information on the conflicting positions concerning the ... [measure] --for that of the local legislative body's --promoting evenhanded administration of election laws by establishing firm filing deadlines."

Governor Newsom advances some of the very arguments that the Barnes court rejected, i.e., that his noncompliance was a good faith error, and that the voters possess an overriding interest in receiving information about his party preference. But the rationale for rejecting the substantial compliance doctrine is at least as strong here as it was in Barnes. The municipal

4 Other cases sometimes grouped with these "deadlines" cases include Daniels v. Tergeson (1989) 211 Cai.App.3d 1204, Steele v. Bartlett (1941) 18 Cal.2d 573, Sinclair v. Jordan (1920) 183 Cal. 486 and Griffin v. Dingley (1896) 114 Cal. 481.

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code in Barnes empowered the registrar to accept late filings if she found a good faith mistake. Secretary Weber has never had such discretion. Section 11320(c) commands her to exclude an elected officer's party preference from the ballot absent compliance with the statutory deadline. Following Barnes, the court will not apply the substantial compliance doctrine or otherwise substitute its judgment for the Legislature's. (See also Ruiz, p. 210 ["While one canon of statutory construction calls for liberal construction of recall statutes in favor of the right to recall elected officials [citation], a court cannot enlarge the scope of a procedural statute where the statutory provisions are clear"], additional citation and quotation marks omitted.)

Governor Newsom argues that Barnes and the other election cases involving deadlines vindicate interests in efficiency and equal treatment, which he asserts were not concerns of the Legislature when it created Section 11320. Secretary Weber disclaims any administrative reason to require elected officers to designate party preference earlier than replacement candidates. Nonetheless, the court discerns a certain efficiency in the Legislature's assignments of deadlines during recall campaigns. The only point at which elected officers are otherwise required to participate in recalls is when they file answers pursuant to Section 11023. Section 11320(c) requires the elected officers to make ahy party designations at that time as well. In this way, the Secretary of State collects everything from the officers at the same time. Perhaps there would be no great burden in collecting answers and party designations at different times, but at least some efficiency inheres in collecting everything at once. Accordingly, Governor Newsom's assertion that the mandatory deadline in Section 11320(c) has "no legitimate policy rationale," (Opening Brf. at 12:16), is without merit.

The same may be said of equal treatment. In Governor Newsom's view, the deadline in Section 11320(c) actually creates inequity because it requires elected officers to designate party preferences on one date and permits replacement candidates to make any designations later. But again, the statutory scheme treats elected officers and replacement candidates alike by setting the deadlines according to when the officer or candidate otherwise appears in the process. The elected officer subject to recall faces a deadline concurrent with his or her answer to the notice of intention. Similarly, replacement candidates face a deadline once the recall election has been ordered and they seek nomination to succeed the elected officer. (See ?? 8002.5, 11381(a); see also footnote 3, supra.)

Moreover, Barnes did not espouse the application of a single deadline to one and all. The point was that strict enforcement of deadlines eliminates the preferential treatment of holding some to deadlines and excusing others. Governor Newsom does not assert that Secretary Weber excuses some replacement candidates from deadlines they face while enforcing deadlines applied to elected officers. Holding all elected officers to the deadline in Section 11320(c) will result in the equal treatment of those persons.

In any event, the court does not read Barnes as narrowly as Governor Newsom does. The Barnes court flatly refused to apply substantial compliance to a statutory deadline. Indeed, counsel do not cite, nor is this court aware of, any precedent extending the substantial

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